Citation Nr: 0625213
Decision Date: 08/16/06 Archive Date: 08/24/06
DOCKET NO. 04-18 794 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Muskogee, Oklahoma
THE ISSUE
Entitlement to a separate 10 percent rating for the service-
connected tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
G. Jackson, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1967 to
October 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2003 rating decision issued
by the RO.
FINDING OF FACT
The service-connected tinnitus is already assigned a 10
percent rating in accordance with the provisions of
Diagnostic Code (DC) 6260.
CONCLUSION OF LAW
The claim for a separate 10 percent rating for the service-
connected tinnitus must be denied by operation of law.
38 U.S.C.A. §1155 (West 2002); 38 C.F.R. §4.87, DC 6260
(2005); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
The U. S. Court of Appeals for Veterans Claims has held that
the statutory and regulatory provisions pertaining to VA's
duty to notify and to assist do not apply to a claim if
resolution of that claim is based on statutory
interpretation, rather than consideration of the factual
evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149
(2001).
In the instant case the facts are not in dispute. Resolution
of the veteran's appeal is dependent on interpretation of the
regulations pertaining to the assignment of disability
evaluations for tinnitus.
Initially, the Board notes that the veteran is already
assigned a 10 percent rating for the service-connected
tinnitus under the applicable criteria. Furthermore,
regardless of whether the tinnitus is characterized as being
unilateral or bilateral, the outcome of this appeal would not
change.
Therefore, because no reasonable possibility exists that
would aid in substantiating this claim, any deficiencies of
VCAA notice or assistance are rendered moot. See 38 U.S.C.A.
§ 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001)
(compliance with the VCAA is not required if no reasonable
possibility exists that any notice or assistance would aid
the appellant in substantiating the claim).
Analysis
Tinnitus is evaluated under 38 C.F.R. § 4.87, DC 6260, which
was revised effective June 13, 2003, to clarify existing VA
practice that only a single 10 percent evaluation is assigned
for tinnitus, whether the sound is perceived as being in one
ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260,
note 2 (2005).
In Smith v. Nicholson, 19 Vet. App. 63 (2005), the U. S.
Court of Appeals for Veterans Claims (Court) reversed a Board
decision that found that, under pre-June 2003 regulations, no
more than a single 10-percent rating could be provided for
tinnitus, whether perceived as bilateral or unilateral.
The Court held that pre-1999 and pre-June 23, 2003, versions
of DC 6260 required that VA assign separate 10-percent
ratings for "bilateral" tinnitus where it was perceived as
affecting both ears.
VA appealed the Court's decision in Smith to the United
States Court of Appeals for the Federal Circuit (Federal
Circuit). To avoid burdens on the adjudication system,
delays in the adjudication of other claims, and unnecessary
expenditure of resources based on court precedent that may
ultimately be overturned on appeal, the Secretary imposed a
stay at the Board on the adjudication of tinnitus claims
affected by Smith.
The specific claims affected by the stay essentially included
all claims in which a claim for compensation for tinnitus was
filed prior to June 13, 2003, and a disability rating for
tinnitus of greater than 10 percent was sought.
Recently, the Federal Circuit reversed the Court's decision
in Smith, and affirmed VA's long-standing interpretation of
DC 6260.
In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the
Federal Circuit cited to the significance of VA's
interpretation of its own regulations and concluded that the
Court erred in not deferring to that interpretation, which in
this case would limit the rating of tinnitus to a single
evaluation regardless of whether the disability was
unilateral or bilateral in nature.
The Federal Circuit similarly noted that there was no
language in the applicable diagnostic criteria clearly
indicating that dual evaluations were required. Id.
As a consequence of that holding, on July 10, 2006, the
Secretary rescinded the stay that had been imposed on all
claims affected by Smith, and directed the Board to resume
adjudication of the previously stayed claims consistent with
VA's longstanding interpretation that a single 10-percent
disability rating is the maximum rating available under DC
6260, regardless of whether the tinnitus is perceived as
unilateral or bilateral.
In view of the Federal Circuit's decision in Smith, the
interpretation of the pre- 2003 version of DC 6260 asserted
by the veteran's representative must be rejected.
For these reasons, the Board finds that the arguments of the
veteran's representative are without legal merit, and the
claim for a separate 10 percent evaluation for the service-
connected tinnitus must be denied in this case. See Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not
the evidence is dispositive, the Board should deny the claim
on the ground of lack of legal merit).
ORDER
The claim for a separate 10 percent rating for the service-
connected tinnitus is denied.
____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs